Thursday, Jan 23 2014
• 12 p.m. (ET)

Future Of Virginia’s Gay Marriage Ban

Virginia’s new attorney general, Mark Herring, says the state’s voter-enacted ban on gay marriage is unconstitutional and he wants to see the courts overturn it. In 2006, Virginia voters amended the state constitution to bar gay marriage, but now Herring’s office is joining two same-sex couples in a lawsuit asking a federal court to strike it down. The move is a sharp reversal of the state’s legal position on gay marriage under his predecessor, Ken Cuccinelli. We get the latest.

Guests

Adam Ebbin
Member, Virginia Senate (D-30th District)

Mark Herring
Attorney General-Elect, Virginia (D)

Robert Marshall
Virginia State Delegate (R- 13th District, Manassass)

Transcript

12:06:39

MS. JENNIFER GOLBECKFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. I'm Jen Golbeck from the University of Maryland sitting in for Kojo. Later in the hour, coming soon to a neighborhood near you, what's behind D.C.'s Movie Theater Boom? But, first, Attorney General Mark Herring reverses course on gay marriage in Virginia. In 2006, Virginia became one of dozens of states around the country to adopt a constitutional amendment banning same-sex marriage.

12:07:18

MS. JENNIFER GOLBECKIn the years since, Virginia's neighbors in Maryland and D.C. have both approved gay marriage by a popular vote. And even the Supreme Court has weighed in, striking down the Defense of Marriage Act last year. Now, Virginia's newly elected democratic attorney general is rethinking Virginia's long-held stance and announcing that he won't defend the state's ban any longer. He joins us to discuss.

12:08:06

MR. MARK HERRINGWell, thank you, Jen, for inviting me. Delighted to be back on the show.

12:08:09

GOLBECKVirginia's had a constitutional ban in place for eight years. Why do you think that ban is unconstitutional now?

12:08:17

HERRINGWell, I think based on Supreme Court precedent and other cases, that Virginia's law violates the 14th Amendment to the United States Constitution. And, you know, maybe we could take a minute and just kind of set the stage for the individuals involved in the case. First of all, the case is down in Norfolk. It's in federal court. It's Bostic vs. Rainey. Timothy Bostic and Tony London live in Norfolk. They've been together as a loving and committed same-sex couple for 25 years. And the other plaintiffs in the case life in Richmond, Carol Schall and Mary Townley.

12:09:00

HERRINGThey've been together for three decades. Their marriage was formalized in 2008 in California. And they have a 15-year-old daughter. The case -- at the time I was sworn in, just two weeks ago -- had been fully briefed on cross motions for summary judgment. And oral arguments were scheduled for January 30. So we needed to move quickly to do a thorough analysis of the law to see whether we believed the law was constitutional. And our conclusion was it was not.

12:09:33

HERRINGAnd, consistent with my duties as an attorney general to uphold the laws and support the constitution not only of Virginia, but also the United States Constitution -- the United State Constitution is the supreme law of the land -- and if I've concluded, after that thorough independent review, that the law is unconstitutional, I felt compelled to change the state's legal position in court.

12:09:56

GOLBECKYou raise an interesting point by bringing up this lawsuit that is at the heart of the issue, because you're not just refusing to defend Virginia's position. You're actually joining in on the lawsuit on the side to have the federal court strike down Virginia's ban.

12:10:11

HERRINGThat's right. And I think that is a significant step that the attorney general is coming in, not just refusing to defend the law, but actually arguing in favor of the plaintiffs in this case. You know, Virginia and -- Virginian's, I think, have a lot to be proud of. We're known as sort of the cradle of democracy, with Madison and Jefferson and Monroe and others. And we've got a lot to be proud of in Virginia. But there have been some times where Virginia has really been on the wrong side of history and the wrong side of the law in some key landmark Supreme Court Cases.

12:10:52

HERRINGBrown vs. Board of Education, in 1954; Prince Edward County was one of the defendants, and we were arguing against that and on the wrong side of it. The Loving decision, Loving vs. Virginia, where the Supreme Court upheld the right of an interracial couple to marry. Virginia argued against that. The case allowing female cadets to enter Virginia Military Institute, Virginia argued against that.

12:11:23

HERRINGAnd, you know, I think it is time that, if an attorney general -- if I have concluded that a state law violates the federal Constitution, that the state's attorney present the state's legal position and come out on the right side of history and the right side of the law.

12:11:42

GOLBECKYou brought up Loving vs. Virginia, which as you mentioned is when the Supreme Court struck down Virginia's ban on interracial marriage in 1967. How do you see the legal issues for same-sex marriage when compared with a case like Loving vs. Virginia on interracial marriage.

12:11:59

HERRINGWell, they're really, I think, two strands of cases in the Supreme Court that touch on the issue. One strand is a long line of the United States Supreme Court cases calling the right to marry a fundamental right that is protected by the 14th Amendment to the United States Constitution. And that was cited also and reaffirmed in Loving vs. Virginia. Then there are also more recent cases. You mentioned in the opening where the Supreme Court struck down Section 3 of the Defense of Marriage Act.

12:12:36

HERRINGAnd in that, Justice Kennedy pointed out that laws that treat same-sex couples as second-class citizens are unconstitutional. And in that case, Justice Scalia actually said that that -- that the Court's rationale is going to set up the case for striking down gay marriage bans that states have instituted.

12:13:03

HERRINGSo when you take those recent developments about discrimination on the basis of sexual orientation together with the long line of cases recognizing the fundamental right to marry, it follows that the Supreme Court, if presented with the same facts that we have here in the case now pending in federal court in Norfolk, that it would strike down Virginia's ban.

12:13:27

GOLBECKYou won the attorney general's seat on a razor-thin margin. Is this a bold move on your part?

12:13:33

HERRINGWell, you know, I'll leave it for the pundits to characterize it like that. But I'm really mainly focused on doing the right thing, making sure that I'm fulfilling the duties and responsibilities as attorney general, and getting it right on the law and focused on Virginia. Obviously this is an issue that ultimately is going to have to be resolved by the courts, and I think the United States Supreme Court. Whether it's going to be this case or whether it's going to be one of the other cases coming from Utah, Oklahoma, or several cases, it's too soon to tell.

12:14:11

HERRINGBut what my focus is on right now is doing the right thing, making sure Virginia's on the right side of history and the right side of the law.

12:14:19

GOLBECKVoters in Virginia approved the state's constitutional ban on same-sex marriage by a solid margin, with 57 percent in support. Do you think public opinion has shifted in the time since then? And, if not, do you worry that you're going against the will of the voters?

12:14:34

HERRINGWell, that's certainly one aspect that I weighed very carefully. And everyone should know, this is not a decision that was done or should be done lightly. It's done with a lot of careful thought, analysis and deliberation. But, ultimately, even if it's something that is a part of the state constitution or ratified by voters, it can't violate the 14th Amendment, it can't violate the United States Constitution.

12:15:03

HERRINGNow, last year, while it didn't reach the ultimate issue, the United States Supreme Court, at the same time it decided the Windsor case, decided another one on DOMA. It also decided another case and sent back a case that effectively nullified California's marriage ban. And that, too, was something that had been approved by California voters and a part of the state constitution of California. And what that shows is that state laws and state constitutions cannot violate the United States Constitution. And as attorney general, I've got a responsibility to follow the law.

12:15:41

HERRINGAnd the U.S. Constitution is the supreme law of the land.

12:15:44

GOLBECKMark Herring, Virginia's newly elected democratic attorney general. Thanks very much for joining us today.

12:15:50

HERRINGThanks for having me and look forward to coming back.

12:15:52

GOLBECKThank you. You, too, can join us in the conversation. Do you agree with Mark Herring's decision not to defend Virginia's ban on gay marriage? Do you think public opinion on gay marriage in Virginia has changed since voters approved the ban in 2006? You can get in touch with us by calling 1-800-433-8850, or sending us an email to kojo@WAMU.org. Or send us a tweet to @kojoshow. Joining us now is Adam Ebbin, Virginia State Democratic Senator, representing Virginia's 30th District. Thanks for joining us.

12:16:24

MR. ADAM EBBINThanks for having me, Jennifer.

12:16:26

GOLBECKYou've served in the Virginia general assembly for ten years. In 2011, you were the first openly gay senator to be elected to Virginia's State Legislature. What's your reaction to the attorney general's announcement.

12:16:37

EBBINIt's a great day for Virginia. It's wonderful to see Virginia waking up from history. And I'm excited that he was willing to do the right thing, in spite of potential political criticism.

12:16:51

GOLBECKYou introduced a bill in the Virginia State Senate that would repeal the constitutional amendment banning gay marriage. It'll be the first time that the senate will hear the same-sex marriage bill. Why did you think the time was right to bring this issue to the Virginia Senate?

12:17:05

EBBINWell, unfortunately, the committee has elected to defer it for a year. But I believe it's the right time because of what the Supreme Court has done and because the voters of Virginia have changed their mind. Polls have shown -- several polls have shown that more than half of Virginians support marriage equality. And I've seen too many gay couples leave the State of Virginia to move elsewhere, where they can have their relationships with full legal rights and responsibilities that they deserve.

12:17:38

GOLBECKYou raise an interesting point with public opinion. As we mentioned to Attorney General Herring, a majority of Virginia voters approved the ban in 2006. Do you think that, eight years later, people in Virginia would vote any differently?

12:17:51

EBBINI do. I mean, I've felt it change. I've seen it change. But, more importantly than anecdotes from me are the polls that show that a majority of Virginians oppose the ban on marriage equality. There was a Washington Post poll, I believe it was last year. And every day, more and more Virginians realize that it doesn't hurt their marriages to have others who have clear rights in raising their children and in fulfilling their obligations as a spouse.

12:18:26

GOLBECKHerring won the election by a very small margin. If his republican opponent had won instead, do you think then that these challenges to Virginia's same-sex marriage ban would have played out differently?

12:18:37

EBBINAbsolutely. It matters who's elected. And I think that Attorney General Herring is willing to put the Constitution ahead of ideology. I think that we saw that his opponent in the election would have carried on the tradition of Ken Cuccinelli.

12:18:56

GOLBECKHerring is clearly not going to have the last word on the constitutionality of same-sex marriage in Virginia. How do you think this issue is going to develop?

12:19:05

EBBINWell, I think ultimately the courts will agree with Attorney General Herring's analysis. What's going to happen is that on January 30, oral arguments begin in the case in -- out of Norfolk in U.S. District Federal Court. And that'll be the first -- the first chance to have the courts weigh in on the Virginia marriage amendment. And then I assume whatever happens will be appealed to the appellate division, and so forth, until it possibly reaches the Supreme Court.

12:19:40

GOLBECKAs that's going forward in one track, you're still pursuing your own bill. Can you describe the process for overturning a constitutional ban legislatively?

12:19:50

EBBINIt is very slow in Virginia, as it is in many other states. First, the amendment would have to be voted to change the existing amendment in either this year or next year. And then it couldn't -- then it would have to pass again in the following year. So it wouldn't be until 2016 that it could appear on the ballot, at soonest, with legislative action.

12:20:22

GOLBECKWhat kind of support do you think you'll have for this bill going forward?

12:20:26

EBBINWell, when it gets a true hearing next year, I think we have a chance of passing it. I've spoken to people in both parties who recognize the need to get rid of Virginia's marriage amendment. The only question is whether people of both parties are willing to take the political risk in voting for what they know is right.

12:20:49

GOLBECKSo the constitutional amendment in Virginia that bans gay marriage still stands now, despite the fact that the attorney general is joining the lawsuit to have the federal court strike it down. What does this mean -- his taking this position, what does that mean for gay couples in Virginia right now?

12:21:07

EBBINWell, right now it means that we're on track to possibly overturn the amendment through the courts. Until the courts rule, we're not sure what it means. It just means that he did the right thing, followed his oath to uphold the U.S. Constitution and followed in the Virginia tradition as the birthplace of civil liberties.

12:21:36

GOLBECKWhat do you see as what will happen if a gay couple wants to get married now? Is this ban going to stay in place and be enforced as it works its way through the courts or is it something like we saw in Utah recently where we had couples getting married briefly?

12:21:54

EBBINNo. The ban still stands. In Utah you have -- I believe you have the courts authorize same gender marriage. So for now gay people in Virginia still will not have their relationships recognized until the court rules otherwise.

12:22:14

GOLBECKSo if you don't mind, we're going to take a caller now. We have Nichole in Washington. Nichole, you're on the air. Go ahead, please.

12:22:20

NICHOLEHi there. Just a quick question and a slight comment. I'm an African American woman. I'm married to a white guy. We were married in Virginia. And my overall question is, why does the will of the people matter when we're talking about a civil right? The will of the people back during Jim Crow era said that blacks and whites could not marry. And then the Supreme Court struck that down. I don't understand why gay marriage is any different than why does the will of the electorate in Virginia really matter when we're talking about civil rights?

12:22:54

GOLBECKAdam Ebbin, can you comment?

12:22:56

EBBINSure. I think you raise a good point in that civil rights and civil liberties should not be up for vote. The votes -- the rights of the minorities should not be at the whim of the majority. And as you noted, it wasn't until 1967 that Virginia even allowed interracial marriage. And that was only because of U.S. Supreme Court. We segregated our schools until 1954. And after that engaged in massive resistance against integration and didn't allow women into BMI until the courts ruled in 1996.

12:23:36

GOLBECKAdam Ebbin, thanks very much for joining us. Adam Ebbin is a Virginia State Democratic Senator representing Virginia's 30th District. We appreciate having you.

12:23:44

EBBINThank you. Bye-bye.

12:23:46

GOLBECKWe were also hoping to talk to Bob Marshall, Virginia State Republican delegate who authored the 2006 constitutional amendment, but unfortunately he's caught up in a committee hearing in Richmond. So hopefully we'll get a chance to talk to him tomorrow on the politics hour. We'll continue our conversation after a short break. Stay tuned.

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